Pregnant sportswomen and the Sex Discrimination Act 1984 (Cth)
Paper presented to Australian
Sports Commission's
National Forum on Pregnancy and Sport by Pru Goward, Sex Discrimination
Commissioner
1 August 2001
1. Introduction
Freedom from pregnancy
discrimination is a fundamental human right protected by legislation at
the federal, State and Territory level.
The Sex Discrimination Act 1984 (Cth) (the SDA) makes it unlawful to discriminate
against pregnant women in work, accessing goods and services and participating
in the activities of registered clubs - all of which may involve sporting
activities.
The Human Rights and Equal Opportunity Commission (the Commission) believes
that the mother, with advice from her expert medical practitioner, is
best placed to determine the likely health and safety impacts of playing
sport.
Where pregnancy
discrimination falls outside the technical operation of the SDA, it is
the Commission's view that restricting the decisions of pregnant women
to freely participate in sporting activity contravenes the spirit of the
SDA. Anti-discrimination law is complex and is very specific about where
discrimination is unlawful and where it is not.
Conduct in one context may fall within the legislation and the same conduct
in another may not. Today I want to provide an overview of anti-discrimination
laws, principally, the federal SDA and how it applies to pregnant women
and sport.
I have considered
sport in a broad context, including players, umpires, coaches, insurers
and others. You may be aware of reports that a complaint has been made
to the Commission in relation to pregnancy and sport. I am not in a position
to comment on any particular complaint.
The Commission is obliged to consider complaints of discrimination from pregnant women and will consider them on a case-by-case basis.
2. Why Australia makes pregnancy discrimination unlawful
Australia is a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This Convention enshrines the fundamental human rights of women and requires Australia to take active measures to ensure women's equality with men and equal participation in various areas on an equal basis with men. Australia has willingly done so.
Pregnancy discrimination laws based on this principle are concerned to remove unlawful barriers so that woman can realise and participate in activities irrespective of whether they wish to have children or not. It is about ensuring that equality is meaningful, that choices are available.
Importantly, in the context of today's discussion, CEDAW requires Australia to take appropriate measures to ensure, on the basis of equality of men and women, the same rights to participate in recreational activities, sports and all aspects of cultural life. [1]
3. Federal, State and Territory anti-discrimination legislation
All States and Territories have anti-discrimination laws that make discrimination against pregnant women unlawful.
Today, I will concentrate on the provisions of the SDA, which has effect in every State and Territory in Australia. State and Territory legislation however operate concurrently with the SDA and it is important to ensure compliance with the highest standard. [2] Complainants under anti-discrimination laws are generally able to choose whether they wish to bring a claim under State, Territory or federal legislation.
4. What does the SDA say about discrimination
Before a person's action or conduct can amount to unlawful discrimination it must be done on a prohibited ground. Additionally, discrimination is unlawful only in particular areas. Therefore before discrimination can be unlawful, there must be both a prohibited ground and a prohibited area. Finally, it is necessary to consider whether any exemption applies.
4.1 Pregnancy as a ground of discrimination
Under the SDA pregnancy (and potential pregnancy) is a prohibited ground. This means that it is unlawful to discriminate against a woman on the basis that she is pregnant. Similar prohibitions apply under legislation in each State and Territory.
Other grounds of discrimination under the SDA include discrimination on the ground of sex and discrimination on the ground of marital status.
4.2 Defining pregnancy discrimination
4.2.1 Direct pregnancy discrimination
Direct discrimination on the ground of pregnancy has the following elements:
- a pregnant woman
is treated less favourably in comparison to someone who is not pregnant;
- in circumstances
that are the same or not materially different; and
- the treatment is because the woman is pregnant or she has a characteristic of a pregnant woman. [3]
In the area of sport, direct pregnancy discrimination may arise where, for example, a gym refuses access to its facilities to a pregnant woman. Unless a specific exception to the legislation applies, the gym will have acted unlawfully.
4.2.2 Indirect pregnancy discrimination
Indirect discrimination on the ground of pregnancy is also unlawful under the SDA. Indirect discrimination occurs where the discriminator imposed or proposed to impose a requirement (a rule, policy, practice or procedure), which appears to treat everyone the same, but disadvantages pregnant women. [4]
There is a defence where the discriminator can show that the requirement was reasonable in the circumstances. [5] The SDA sets out factors to be taken into account in assessing reasonableness, including the nature of the disadvantage caused, the feasibility of overcoming the disadvantage and whether the disadvantage is proportionate to the result sought by the person imposing the requirement. [6]
For example, instead of deciding to automatically ban pregnant women from playing hockey, a local association decides that pregnant women must stop playing after they are 16 weeks pregnant.
Here, there is not a direct ban on pregnant women playing, but a requirement that pregnant women stop playing after 16 weeks. This requirement has the potential to disadvantage pregnant women more so than women who are not pregnant. In issue will be whether the decision to prevent women playing hockey after 16 weeks is reasonable in the circumstances. The assessment of reasonableness would include the nature of disadvantage to the pregnant player, how this could be overcome and whether the disadvantage is proportionate to what the hockey association sought to achieve by imposing the ban after 16 weeks gestation.
4.3 Areas where it is unlawful to discriminate against pregnant women
As mentioned earlier pregnancy discrimination is unlawful only in a number of specific areas of public life. The SDA and State and Territory legislation make discrimination on the ground of pregnancy unlawful in a number of areas relevant to sport, including:
- Work
- Goods, services
and facilities
- Clubs
- Administration of Commonwealth laws and programs
4.3.1 Work
The area of work covers a range of arrangements, most relevantly:
- employees - full-time,
part-time, casual employees, fix term contract or ongoing; [7]
and
- workers employed on a commission basis (commission agents). [8]
It is unlawful to discriminate on the ground of pregnancy when recruiting. This covers the arrangements made for and in determining who should be offered employment or engaged as a commission agent or the terms or conditions on which employment or engagement is offered.
It is also unlawful to discriminate on the ground of pregnancy:
- in the terms
and conditions provided to employees and commission agents;
- by denying
or limiting access to benefits of employment;
- by dismissing
the employee, or terminating the engagement of the commission agent;
or
- by subjecting the person to any other detriment.
For example, it would be unlawful for an organisation that employs an umpire to umpire basketball matches on a per match basis, to refuse to provide the umpire with further games because she is pregnant. This may be a dismissal on the basis of pregnancy.
Similarly, if the basketball players themselves were employed to play the game and a player was relegated to the bench because she is pregnant, this could amount to a detriment because of her pregnancy, if the player lost income, sponsorship or selection opportunities or some other detriment.
4.3.2 Providing goods, services and facilities
It is unlawful for a person to discriminate against a woman because she is pregnant by:
- refusing to provide
her with good or services or refusing to make facilities available;
- providing differential
terms and conditions for accessing goods, services or facilities; or
- providing goods, services or facilities on a differential basis. [9]
I'll provide some
examples in a moment.
The prohibition on discrimination applies whether the pregnant woman pays
for the goods, services or facilities, or not. [10]
These provisions apply widely, covering private organisations, universities, a government authority or a local government body that provides sporting facilities or sporting activities.
Clearly covered by these provisions are organisations or people who provide sporting activities or facilities. For example, organisations that hire tennis courts, run an ice skating rink, a gym or swimming pool or offer scuba diving lessons. [11]
Also covered could be organisations that organise a particular competition, such as a sports association or a competition promoter. The competition itself could be construed as a facility or a service.
For example, a local council organises a lunch time mixed volleyball competition for local businesses. The council makes it a requirement that none of the team members are pregnant before they can enter the competition and use the volleyball courts. If a pregnant woman sought to play in the competition, she could make a complaint that the council officer was discriminating against her because of her pregnancy by refusing to provide her with access to the council's sporting facilities and / or services.
Another example may be the organisers of a 10-kilometre harbour swim decided that they will not accept pregnant women into the competition. The organisers would be unlawfully discriminating on the basis of pregnancy, unless they fell within a exemption to the SDA.
Insurance providers are also covered by the prohibition on pregnancy discrimination in the area of goods, services or facilities.
For example, if an insurance company refused to provide insurance to a sportswoman because she was pregnant, it could amount to unlawful discrimination on the ground of pregnancy.
In relation to insurance, it is more likely that an insurance provider is providing insurance to an association or a team. If the insurer refused to provide insurance to a sporting association if it allowed a pregnant woman to play sport and the association refused to allow the woman to participate, the insurer may not have directly discriminated.
This is because the insurer's service is being provided to the association, not the pregnant woman herself. It is possible however that the insurer may be indirectly discriminating on the ground of pregnancy.
It is also worth noting that the SDA provides an exemption for insurance providers, but only in relation to discrimination on the ground of sex - not pregnancy. [12]
4.3.3 Activities of clubs
The provisions of the SDA cover clubs.[13] The definition of clubs is very specific and some important aspects of the definition are that it must have at least 30 members and sell or supply liquor for consumption on its premises. [14]
The most relevant areas in which pregnancy discrimination by a club is unlawful is:
- in the terms
and conditions of membership; and
- in access to benefits provided by the club
Clubs covered by the SDA must ensure that they do not refuse pregnant women access to the benefits of club facilities such as sporting teams, sporting competitions or gym equipment. Making decisions on who will play in a club team based on pregnancy would amount to discrimination because it would be treating a woman less favourably in her access to club benefits.
It is important to remember that some States have very wide definitions of clubs and capture a broader range of organisations than the SDA. It is important to check whether that legislation may apply even if the SDA does not.
For example in South Australia, it is unlawful for an association to discriminate against members. [15] Association is not defined and arguably can have a very wide meaning. In Queensland a club is defined as an association that is established for social, literary, cultural, political, sporting, athletic, recreational, community service or other similar lawful purpose and is established for the purposes of making a profit. [16] There is no minimum number of members or a requirement to sell liquor.
4.4.4 Administration of Commonwealth laws or Commonwealth Programs
The SDA makes it unlawful for a person to discriminate on the basis of pregnancy in the administration of Commonwealth laws and Commonwealth programs. Administration of a Commonwealth program can include any program that is run by an organisation using Commonwealth Government funding. [17]
For example, an organisation receives a Commonwealth grant to encourage women to play soccer or to promote a mixed athletics program. That organisation would be discriminating in the administration of that program if they treated a woman less favourably because she was pregnant.
The administration of Commonwealth laws and programs also covers the Australian Sports Commission and the Australian Institute of Sport.
4.4.5 Sport as an area of discrimination
Victorian legislation makes discrimination in the area of sport unlawful of itself. [18] The prohibition on discrimination on the basis of pregnancy applies to competitive sports, games and pastimes and coaching, umpiring, and administration of sport.
5. Exemptions from anti-discrimination legislation
5.1 Permanent exemptions
Anti-Discrimination legislation, including the SDA, contain a range of exemptions. Actions falling within an exemption are not unlawfully discriminatory, even where they fall within a ground and an area.
5.1.1 Voluntary Bodies
Perhaps the most relevant exemption under the SDA is that applying to voluntary bodies.
A voluntary body is defined in the SDA as:
An association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include:
a) a club
b) a registered organisation
c) a body established by a law of the Commonwealth, State or a Territory;
or
d) an association that provides grants, loans, credit or finance to its
members. [19]
Voluntary bodies are exempted from the SDA in connection with:
- the admission
of members; and/or
- the provision of benefits, facilities and services to the members of the body.
It may be that sporting associations organising competitive sports or endurance competitions fall within this exemptions. However, the organisation must fall within the definition of voluntary body and the conduct complained of must related to the admission of or the provision of benefits to members of the voluntary body. It is still unlawful for a voluntary body to discriminate, for example, against pregnant women who are employed by the voluntary body or against pregnant women seeking a service from the voluntary body that is generally available.
South Australia, Queensland, the Northern Territory do not have any exemption for voluntary bodies. Victoria, while not having an exemption for voluntary bodies, has an exemption for private clubs [20] that would operate in a similar way.
5.1.2 Compliance with other laws
State and Territory legislation provides an exemption for compliance with other Acts and/or other laws.
A significant area in which this is used to defend discrimination claims, often with mixed success, is compliance with Occupational Health and Safety legislation. [21] I understand that one of my fellow presenters here today will be addressing the issue of occupational health and safety in more detail.
The SDA does not provide a general exclusion for conduct in compliance with other laws. Rather it lists a limited number of Acts for which an exemption is available. The Acts cover matters such as national health, social security and taxation. Where discrimination occurs by reason of the automatic operation of other federal legislation, such discrimination is not unlawful under the SDA. This is because there is no discretion to act in a non-discriminatory manner. [22]
Discriminatory conduct which is in compliance with State legislation however is likely to be unlawful under the SDA. This is because where there is an inconsistency between State legislation and the SDA, the SDA will override the State law to the extent of any inconsistency. [23]
5.1.3 Orders of Courts and Tribunals
The SDA, like most anti-discrimination legislation, exempts conduct done in direct compliance with an order of a court or tribunal. [24] A Court order allowing an organisation to ban a pregnant woman from competing would override the SDA provisions relating to pregnancy discrimination.
5.1.4 Sport
It is not unlawful to exclude persons on the basis of sex from playing in competitive sports in which the strength, stamina or physique of competitors is relevant. The exemption does not apply to coaching, umpiring, administration or sporting activities for children under the age of 12 years of age. [25] So it remains unlawful to discriminate in those areas.
This exemption, like a number under the SDA, only protects a person from a claim of unlawful sex discrimination, not pregnancy discrimination. A person cannot use this provision to argue that a pregnant woman can be excluded from participating in, coaching, umpiring or administrating a sporting because of her physique, for example.
5.1.5 Other exemptions
Other exemptions under the SDA allow a person to provide rights and benefits in connection with pregnancy and childbirth,[26] or to provide services only to one sex where the service is of a kind that it can only be provided to one sex. [27] While on the face of it these may seem relevant to the present discussion, it is unlikely that either would provide a defence to a claim of pregnancy discrimination.
5.2 Temporary exemptions
Section 44 of the SDA gives the Commission the power to grant temporary exemptions from the operation of the SDA. The effect of a temporary exemption is that discrimination covered by the exemption is not unlawful under the SDA while the exemption remains in force.
Temporary exemptions are just that - temporary, and cannot be granted for more than 5 years at a time.
The Commission has published criteria and procedures to guide the Commission in exercising its discretion to grant temporary exemptions. Key concerns in exercising its discretion are:
1. The objects of the SDA, which include to eliminate, so far as is possible, discrimination against persons on the ground of pregnancy, potential pregnancy.
2. Whether there is at least an arguable case that the circumstances or activities might constitute discrimination under the SDA applies.
3. The exemption
must be appropriate in light of the objects and scheme of the SDA. To
assess this the Commission will have regard to:
- The particular
circumstance of the case;
- The reasonableness
of the exemptions sought - the Commission will weigh up the nature and
extent of the discriminatory effect against the reasons advanced in
favour of the exemption; and
- Whether the circumstance, while not falling precisely within any of the permanent exemptions to the SDA, bear a close resemblance to any of those exemptions so as to be within the spirit or broad scheme of those exemptions.
State and Territory legislation also provides for exemptions to be granted on application. It is important to note that an exemption under the SDA does not automatically apply under State and Territory legislation and employers, service providers or clubs would also need an exemption under the relevant State or Territory Act.
Temporary exemptions are rarely granted under the SDA. An example of where a temporary exemption has been granted in the past was to employers in the lead industry. During the period of the exemption the lead industry implemented improved controls over exposure to lead by both men and women. Those exemptions no longer exist.
6. Commission complaint processes
The Commission is obliged to consider complaints of discrimination from pregnant women and will consider them on a case-by-case basis. The President of the Commission, along with her delegates and staff, is responsible for dealing with complaints.
Complaints made to the Commission will generally be accepted where there is discrimination within the definition of direct and indirect discrimination and whether the conduct falls within one of the areas to which the SDA applies. Complaints may be terminated for reasons including they relate to events more than 12 months old, they are lacking in substance or there is an adequate alternative remedy.
If there is enough evidence to support the complaint and it is covered by the legislation, the Commission will generally attempt to conciliate the matter. If the complaint cannot be conciliated, the President of the Commission may terminate the complaint. The Commission no longer conducts public hearings if conciliation is unsuccessful.
When complaints are terminated for whatever reason, the affected person can apply to the Federal Court of Australia or Federal Magistrates Service to have the original allegations heard and determined. The affected person must apply to the Court or the Service within 28 days of the date of the notice of termination. Further information about this process can be obtained from the Federal Court Registry in each State and Territory.
Decisions of the Federal Court and Federal Magistrates Service are binding, just like any other court order.
7. Conclusion
Pregnancy discrimination provisions in both the SDA and State and Territory legislation clearly have an impact on the issue of participation of pregnant women in sporting activity.
Restrictions on participation by pregnant women may lead to a complaint of discrimination that falls within the scope of the SDA. Certain exemptions may mean that some organisations can legitimately exclude pregnant women, depending on the particular facts of the case. However the Commission believes that the mother, with advice from her expert medical practitioner, is best placed to determine the likely health and safety impacts of playing sport.
The purpose behind
the legislation is to ensure that pregnant women are able to fully enjoy
their rights to participate in social activity free from discrimination.
1. Article 13
2. Section 10 Sex Discrimination Act 1984 (Cth)
3. Section 7(1) Sex Discrimination Act 1984 (Cth)
4. Section 7(2) Sex Discrimination Act 1984 (Cth)
5. Section 7B Sex Discrimination Act 1984 (Cth)
6. Section 7B(2) Sex Discrimination Act 1984 (Cth)
7. Section 14 Sex Discrimination Act 1984 (Cth)
8. Section 15 Sex Discrimination Act 1984 (Cth)
9. Section 22 Sex Discrimination Act 1984 (Cth)
10. Section 22(1) Sex Discrimination Act 1984 (Cth)
11. For reported cases involving the provision of sporting facilities and unlawful sex discrimination see Pulis & Banfield v Moe City Council (1986) EOC 92-170 and (1988) EOC 92 - 243, and Ross & Ors v University of Melbourne (1990) EOC 92-290. In both of these cases men were denied access to facilities because it was a "women's night" at the relevant venue. It was held that this amount to unlawful sex discrimination..
12. Section 40 Sex Discrimination Act 1984 (Cth)
13. Section 25 Sex Discrimination Act 1984 (Cth)
14. Section 4 Sex Discrimination Act 1984 (Cth)
15. Section 35 Equal Opportunity Act 1984 (SA)
16. Section 4 Anti-Discrimination Act 1991 (Qld)
17. Jacqueline Nora Hough v Council of the Shore of Caboolture (1992) 39 FCR 514, Re Tom Hariss v Quentin Bryce, Sex Discrimination Commissioner and Human Rights and Equal Opportunity Commission (1993) 41 FCR 388
18. Section 65 Equal Opportunity Act 1995 (Vic)
19. Section 4 Sex Discrimination Act 1984 (Cth)
20. Section 78 Equal Opportunity Act 1995 (Vic)
21. Cases that have been unsuccessful is establishing Occupational Health and Safety obligations as a defence to discrimination include State Transit Authority v Sloey & Anor [1999] NSWSC 47, Kitt v Tourism Commission & Ors (1987) EOC 92-196. Compare with Hawes v NSW Ambulance Service (1994) EOC 92-586 and Heinz Company Australia Ltd v Turner (1999) EOC 92-964 where the defence was successfully argued.
22. Sumner v PSS Board and Commonwealth of Australia (1998) HREOC 16, 27 May 1998.
23. MW, DD, TA and AB v Royal Women's Hospital, the Freemason's Hospital and State of Victoria (1997) EOC 92-886
24. Section 40(1) Sex Discrimination Act 1984 (Cth)
25. Section 42 Sex Discrimination Act 1984 (Cth)
26. Section 31 Sex Discrimination Act 1984 (Cth)
27. Section 32 Sex Discrimination Act 1984 (Cth)
Last updated 1 December 2001
